Gamma Construction Co. v. Werhan Folkers & Monihan, Inc.

Full title: GAMMA CONSTRUCTION CO., a Texas Corporation, Plaintiff--Appellant, v…

Court: United States Court of Appeals, Ninth Circuit

Date published: Apr 3, 2001

11 F. App'x 814 (9th Cir. 2001)

Opinion

11 Fed.Appx. 814 (9th Cir. 2001) GAMMA CONSTRUCTION CO., a Texas Corporation, Plaintiff--Appellant, v. WERHAN FOLKERS & MONIHAN, INC., an Arizona Corporation, Defendant--Appellee. No. 99-17290. D.C. No. CV-99-00636-RCB. United States Court of Appeals, Ninth Circuit. April 3, 2001

Argued and Submitted March 16, 2001.

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Appeal was taken from an order of the United States District Court for the District of Arizona Robert C. Broomfield, J., dismissing action for lack of subject matter jurisdiction and improper venue. The Court of Appeals held that under forum selection clause stating that litigation must be brought and tried in jurisdiction of "the" court in Coconino County, Arizona, and may not be removed to any other county or judicial jurisdiction, venue lay in the Superior Court in Coconino County.

Affirmed in part, vacated in part.

Appeal from the United States District Court for the District of Arizona Robert C. Broomfield, District Judge, Presiding.

Before REINHARDT, RYMER, and FISHER, Circuit Judges.

MEMORANDUM ^*

* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.

Gamma appeals dismissal of its action for lack of subject matter jurisdiction and improper venue. We affirm the improper venue determination and vacate the alternative holding.

While not well written, the forum selection clause states that litigation must be brought and tried in the jurisdiction of "the" court in Coconino County, Arizona, and may not be removed to any other county or judicial jurisdiction. We agree with the district court that the only sensible reading of the clause as a whole is for venue to lie in the Superior Court in Coconino County, as it is the only forum which qualifies as "the" court in that county. While the federal district court (or other state courts) may well have jurisdiction over matters arising in Coconino County, the clause does not prescribe venue for "a" court but rather for "the" court in the county. Accordingly, the district court correctly determined that the matter must be brought in state court in Coconino County. See Docksider, Ltd. v. Sea Technology, Ltd., 875 F.2d 762, 764 (9th Cir.1989).

Given enforcement of the forum selection clause, this action must be tried in all respects in state court. For this reason, we vacate the district court's alternative holding with respect to limitation of liability so that it may have no preclusive effect.

Page 815.

AFFIRMED IN PART; VACATED IN PART.